Ni v. Gonzales

04-0042-ag
Ni v. Gonzales
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2006
6
7
8 (Argued: February 14, 2007 Decided: July 12, 2007)
9
10 Docket No. 04-0042-ag
11
12 - - - - - - - - - - - - - - - - - - - -x
13
14 XIAO XING NI,
15
16 Petitioner,
17
18 -v.-
19
20 ALBERTO GONZALES, Attorney General,*
21
22 Respondent.
23
24 - - - - - - - - - - - - - - - - - - - -x
25

26 Before: JACOBS, Chief Judge, WALKER, CALABRESI,
27 Circuit Judges.
28
29 Petition for review of a final decision and order of

30 removal of the Board of Immigration Appeals summarily

31 affirming an immigration judge’s denial of an application

32 for asylum, withholding of removal, and relief under the

33 Convention Against Torture.

*
1 Pursuant to Federal Rule of Appellate Procedure
2 43(c)(2), Attorney General Alberto Gonzales is substituted
3 for his predecessor, Attorney General John Ashcroft, as
4 respondent.
 1 Petition denied.

2 Judge Calabresi concurs in a separate opinion.

3 JOAN XIE, New York, NY, for
4 Petitioner.
5
6 KELLY A. ZUSMAN, Assistant
7 United States Attorney (Kenneth
8 C. Bauman, on the brief), for
9 Karin J. Immergut, United States
10 Attorney, District of Oregon,
11 Portland, OR , for Appellee.
12
13 DENNIS JACOBS, Chief Judge:
14
15 Xiao Xing Ni, a native and citizen of China, seeks

16 review of a December 15, 2003 order of the Board of

17 Immigration Appeals (“BIA”) affirming the July 18, 2002

18 decision of an immigration judge (“IJ”). In re Xiao Xing

19 Ni, No. A79 399 277 (B.I.A. Dec. 15, 2003), aff’g A79 399

20 277 (Immig. Ct. N.Y. City July 18, 2002). The IJ determined

21 that Ni’s testimony was not credible, and denied her

22 application for asylum, withholding of removal, and relief

23 under the Convention Against Torture (“CAT”).

24 For the reasons that follow, we conclude that the IJ’s

25 decision was supported by substantial evidence. More

26 analysis is required, however, because: [i] Ni has given

27 birth to one child; [ii] certain documents (mentioned in Jin

28 Xiu Chen v. U.S. Department of Justice, 468 F.3d 109 (2d

2
 1 Cir. 2006)) might--if they are authentic--indicate that the

2 birth of one child could result in forced sterilization for

3 a person who is returned to Fujian Province; and [iii] our

4 opinion in Tian Ming Lin v. U.S. Department of Justice, 473

5 F.3d 48, 52 (2d Cir. 2007) (per curiam), suggests in dicta

6 that, although by statute we “may not order the taking of

7 additional evidence,” 8 U.S.C. § 1252(a)(1), we may have

8 “inherent power” to do so in the circumstances presented

9 here. We need not decide whether (despite Congress’s

10 proscription) there may be circumstances in which we retain

11 an inherent power to remand to the BIA for the consideration

12 of additional evidence; we hold more narrowly that

13 regardless of whether such residual inherent power exists,

14 we should not exercise it if: [i] the basis for the remand

15 is an instruction to consider documentary evidence that was

16 not in the record before the BIA; and [ii] the agency

17 regulations set forth procedures to reopen a case before the

18 BIA for the taking of additional evidence.

19

20 I

21 Ni arrived in the United States in April 2001 and

22 applied for asylum, withholding of removal, and CAT relief

3
 1 based on her claim of persecution under China’s family-

2 planning policy. Her asylum application claimed: She began

3 living with a man in 1996, became pregnant about two years

4 later, was forced to undergo an abortion when the cadre

5 discovered the pregnancy in November 1998, and was fined for

6 a violation of “birth control policy.”

7 At the July 18, 2002 hearing, Ni testified that she and

8 her boyfriend began living together in her parents’ house in

9 1997 when they were both fifteen years old, that they were

10 unmarried because they were under-age, that they had no

11 traditional wedding ceremony because they “were worried

12 about what the neighbors would say,” but that neighborhood

13 opinion did not inhibit them from having wedding photographs

14 taken, or from cohabiting unmarried at age fifteen.

15 Ni further testified that she was given an abortion

16 certificate, that her mother paid a fine imposed on Ni for

17 becoming pregnant outside marriage (and was given a

18 receipt), and that Ni left China when she became pregnant

19 again because she feared another forced abortion and forced

20 sterilization. When asked to explain why the asylum

21 application mentioned no fear of sterilization, Ni twice

22 said that she simply forgot to mention it.

4
 1 Ni’s son was born in the United States on November 12,

2 2001. The IJ did not make an adverse credibility finding as

3 to Ni’s assertion that she has one child, and the government

4 does not dispute the point.

5

6 II

7 The IJ found that Ni’s testimony was not credible and

8 rejected her application for relief. The BIA affirmed.

9 Where, as here, the BIA’s decision affirms the IJ’s adverse

10 credibility finding without rejecting any portion of the

11 IJ’s decision, but emphasizing particular aspects of the

12 reasoning, we review both decisions. See Guan v. Gonzales,

13 432 F.3d 391, 394 (2d Cir. 2005) (per curiam). We review

14 the agency’s findings, including credibility findings, for

15 “substantial evidence,” Ye v. Dep’t of Homeland Security,

16 446 F.3d 289, 294 (2d Cir. 2006), treating the agency’s

17 findings as “conclusive unless any reasonable adjudicator

18 would be compelled to conclude to the contrary.” 8 U.S.C. §

19 1252(b)(4)(B).

20 “When a factual challenge pertains to a credibility

21 finding . . . we afford particular deference in applying the

22 substantial evidence standard, mindful that the law must

5
 1 entrust some official with responsibility to hear an

2 applicant’s . . . claim, and the IJ has the unique advantage

3 among all officials involved in the process of having heard

4 directly from the applicant.” Zhou Yun Zhang v. I.N.S., 386

5 F.3d 66, 73 (2d Cir. 2004) (internal citations and quotation

6 marks omitted). Our review of an adverse credibility

7 determination is “exceedingly narrow,” Melgar de Torres v.

8 Reno, 191 F.3d 307, 313 (2d Cir. 1999), and ensures only

9 that it is “based upon neither a misstatement of the facts

10 in the record nor bald speculation or caprice.” Zhang, 386

11 F.3d at 74.

12 The adverse credibility finding here was supported by

13 substantial evidence. The IJ found that Ni’s credibility

14 was undermined by [i] the implausibility and inconsistency

15 of Ni’s testimony about her deference to the neighbors’

16 views regarding her boyfriend and her pregnancy; [ii] Ni’s

17 failure to mention her claimed fear of sterilization on

18 direct examination or in her asylum application, or until

19 “the very last part of the hearing when the Court started to

20 ask questions”; and [iii] the discrepancy between Ni’s claim

21 that she received an abortion certificate following her

22 forced abortion and the 1998 State Department Country Report

6
 1 which states that United States authorities “are unaware of

2 any so-called ‘abortion certificates’” and that “the only

3 document that might resemble such a certificate . . . is a

4 document issued by hospitals upon a patient’s request after

5 a voluntary abortion.” Bureau of Democracy, Human Rights

6 and Labor, U.S. Dep’t of State, China: Profile of Asylum

7 Claims and Country Conditions 24 (Apr. 14, 1998); see also

8 Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006).

9 The adverse credibility finding undermines the only

10 record evidence of Ni’s alleged past persecution or risk of

11 future persecution. Accordingly, the BIA’s denial of Ni’s

12 application for asylum and withholding of removal is

13 supported by substantial evidence. See Paul v. Gonzales,

14 444 F.3d 148, 156 (2d Cir. 2006). Ni has pressed no

15 meaningful challenge to the denial of her CAT claim; so any

16 challenge is waived. Cf. Yueqing Zhang v. Gonzales, 426

17 F.3d 540, 546 n.7 (2d Cir. 2005).

18

19 III

20 In virtually all cases, the conclusion that substantial

21 evidence supports the IJ’s decision would end our inquiry;

22 our review of an IJ’s findings is limited to determining

7
 1 whether “any reasonable adjudicator would be compelled to

2 conclude to the contrary.” 8 U.S.C. 1252(b)(4). Absent a

3 determination that a reasonable adjudicator would be so

4 compelled, or that the IJ committed an error of law, the

5 petition must be denied. See id. However, in Tian Ming Lin

6 v. U.S. Department of Justice, 473 F.3d 48 (2d Cir. 2007)

7 (per curiam), a panel of this Court raised in dicta the

8 prospect that we may be able nevertheless to remand for

9 further fact-finding. The Tian Ming Lin panel: [i] took

10 judicial notice of certain documents that were in the record

11 of another case, Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d

12 Cir. 2006); [ii] relied on Guo for the proposition that the

13 documents, “if authentic,” “‘apparently reflect[]

14 governmental policy in the province in China where [the

15 petitioner] lived,’” Tian Ming Lin, 473 F.3d at 51-52

16 (quoting Guo, 463 F.3d at 115); and [iii] remanded to the

17 BIA for consideration of the so-called Guo documents because

18 they “may constitute evidence of an official policy of

19 forcible sterilization in Fujian Province,” Tian Ming Lin,

20 473 F.3d at 51.

21 The Guo documents (if authentic) concern the possible

22 sterilization of persons who have had two or more children.

8
 1 Id. Ni has had only one; but suspect documents to similar

2 effect regarding persons who have had any number of

3 unauthorized births were in the record in another recent

4 case of this Court: Jin Xiu Chen v. U.S. Department of

5 Justice, 468 F.3d 109 (2d Cir. 2006). Thus, the question

6 before us is whether, if we take judicial notice of the so-

7 called Chen documents, we have inherent power to order a

8 remand for the BIA to consider documents that are not in the

9 record of this case. To answer this question, the interplay

10 of these recent cases and the underlying statutory framework

11 requires some explication.

12 In Shou Yung Guo, the petitioner moved to reopen her

13 case before the BIA and attempted to establish her risk of

14 torture in China by submitting, inter alia, documents that

15 purported to show that in Fujian Province her American-born

16 second child would be counted for purposes of Chinese

17 family-planning policies, and that in Fujian “the birth of a

18 second child would result in forced sterilization.” 463

19 F.3d at 112-13. The panel observed that although the

20 documents were “unquestionably” material, it was “not

21 apparent to us that the BIA ever really paid any attention

22 to the documents.” Id. at 115. Accordingly, the Guo panel

9
 1 remanded so that the BIA could consider the evidence that

2 had been “casually” and inexplicably “dismissed.”1 Id.

1
1 The BIA recently considered the Guo documents in In
2 re J-W-S-, 24 I. & N. Dec. 185 (B.I.A. 2007), and In re J-H-
3 S-, 24 I. & N. Dec. 196 (B.I.A. 2007), and in both cases
4 concluded that “there [was] insufficient evidence to
5 indicate that the applicant ha[d] an objectively reasonable
6 well-founded fear of sterilization on account of his
7 opposition to China’s one-child policy if he is removed to
8 China.” In re J-W-S-, 24 I. & N. Dec. at 194; see also In
9 re J-H-S-, 24 I. & N. Dec. at 202 (“Based on the record as a
10 whole, we find that the respondent has not presented
11 sufficient evidence to prove a well-founded fear of future
12 persecution in Fujian Province on account of having fathered
13 two daughters there.”). As discussed above, the Guo
14 documents are not at issue here; the fact scenario here
15 differs from the fact scenarios in J-W-S- and J-H-S-; and
16 the phenomenon that documents of record in some cases are
17 not of record in others is ever-present.
18
19 In Chen, we ruled that documents in the record of that
20 case “cast doubt on the IJ’s finding that Chen will not face
21 forced sterilization if returned to China.” 468 F.3d at
22 112. Ni’s case is similar, but because the documents are
23 not in this record, we have cause to decide whether we
24 possess inherent power to order the agency to consider them.
25 There may be a question as to whether (or to what extent) J-
26 W-S- and J-H-S- affect determinations to remand for the
27 consideration of record evidence of China’s family-planning
28 policies; but we have no occasion to reach that question,
29 let alone answer it. If it were proper to exercise an
30 inherent power to order the taking of additional evidence,
31 then we would have to consider whether, in Ni’s case, such
32 an order would be appropriate under our immigration
33 jurisprudence and as a matter of discretion. That latter
34 inquiry might raise a question as to how J-W-S- and J-H-S-
35 bear upon the circumstances that supported the remand in
36 Chen. But since we hold (for reasons that follow in the
37 text) that we should not exercise any inherent power, we
38 have no occasion to decide how J-W-S- and J-H-S- would bear
39 upon the hypothetical exercise of such a power.
10
 1 In Tian Ming Lin, the petitioner alleged similar

2 factual circumstances: he was “the father of two United

3 States-born children” and claimed that he too “would face

4 forced sterilization if returned to Fujian Province.” 473

5 F.3d at 49. Unlike petitioner Guo, however, Lin did not

6 submit the Guo documents to the BIA in support of his motion

7 to reopen. Instead, after the BIA had denied Lin’s motion,

8 Lin moved in this Court to remand to the BIA so that the BIA

9 could be given the opportunity to consider the Guo

10 documents. Id. at 51. At a late stage of the appeal, the

11 government joined Lin’s request. Id. at 54.

12 Prior to the enactment of the Illegal Immigration

13 Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),

14 Pub. L. No. 104-208, 110 Stat. 3009, we had the authority to

15 remand to the BIA for the taking of additional evidence;

16 that authority was found in 28 U.S.C. § 2347(c), which

17 provides that we “may order . . . additional evidence . . .

18 to be taken by the agency” if the petitioner shows that “the

19 additional evidence is material” and “there were reasonable

20 grounds for failure to adduce the evidence before the

21 agency.” See also Tian Ming Lin, 473 F.3d at 52. On

22 remand, the BIA could then “modify its findings of fact, or

11
 1 make new findings, by reason of the additional evidence so

2 taken, and may modify or set aside its order.” 28 U.S.C. §

3 2347(c).

4 But IIRIRA explicitly revoked our authority to remand

5 to the BIA for the taking of additional evidence pursuant to

6 § 2347(c): “Judicial review of a final order of removal . .

7 . is governed only by chapter 158 of Title 28, . . . except

8 that the court may not order the taking of additional

9 evidence under section 2347(c) of Title 28.” 8 U.S.C. §

10 1252(a)(1). Accordingly, there remained “no statutory

11 mechanism” by which petitioner Lin could move for remand to

12 the BIA to consider the Guo documents; the Tian Ming Lin

13 panel thus denied the motion. 473 F.3d at 52.

14 The panel nevertheless granted the relief for which Lin

15 had moved, and remanded to the BIA. The Court did not order

16 the taking of additional evidence; rather, it remanded “for

17 further proceedings consistent with this opinion,” and

18 stated that the basis for the remand was that “both parties

19 ask[ed] us to remand.” Id. at 54-55. In extensive dicta,

20 however, the Tian Ming Lin panel offered two alternative

21 bases for its decision: [i] remand was appropriate because

22 the government requested a remand, id.; or [ii] remand was

12
 1 appropriate because we have “inherent equitable power to

2 remand cases to administrative agencies for further

3 proceedings in sufficiently compelling circumstances.” Id.

4 at 52; see also id. at 54-55. We are unlikely ever to

5 decide whether we have inherent power to remand for

6 consideration of the Guo documents, and, if so, whether we

7 retain that power in the face of the government’s opposition

8 to a remand--the government has been consenting to remand in

9 those cases by stipulation. But since the government has

10 not stipulated to a remand in Ni’s case, we consider whether

11 we can remand for consideration of the Chen documents as an

12 exercise of our inherent power.

13

14 IV

15 As set out above, the Guo documents are not material to

16 claims by Ni, who has had a single child. However, the Chen

17 documents--documents in the record of Jin Xiu Chen v. U.S.

18 Dep’t of Justice, 468 F.3d 109 (2d Cir. 2006)--could bear

19 more directly on Ni’s claims. The petitioner in Chen

20 submitted “a document that purport[ed] to be a translation

21 of a 1995 missive from the ‘Changle City Family Planning

22 Policy Leading Team,’” that states: [i] “that individuals in

13
 1 . . . marriages . . . below the statutory age of marriage .

2 . . who have a child ‘must undergo sterilization after the

3 first childbirth’”; [ii] “that unmarried women ‘with [a]

4 history of giving childbirth [sic], no matter the number of

5 childbirth[s] she had before, . . . must comp[ly] with the

6 sterilization policy’”; and [iii] “that ‘[t]hose subjects

7 who gave out-of-plan birth must be imposed with [sic]

8 sterilization operation.’” Id. at 112. If these Chen

9 documents are authentic, and if the 1995 policies described

10 therein remain in force, they may be relevant to the

11 question of whether Ni would face forced sterilization if

12 she were to return to Fujian Province. See id. (noting that

13 the BIA has yet to “consider the authenticity, scope, and

14 import of the 1995 Changle City document”).

15 Ni has not moved in this Court for a remand to the BIA

16 to consider the Chen documents; but as Tian Ming Lin makes

17 clear, Ni lacks a procedural means to make that motion and

18 we lack the statutory authority to grant it. Furthermore,

19 the government does not stipulate to a remand in this case,

20 as it did in Tian Ming Lin. Without the consent of the

21 parties as an available basis for remand, we are confronted

22 with the question left open by Tian Ming Lin: whether,

14
 1 despite the revocation of § 2347(c), we have the inherent

2 equitable power to remand to the BIA and order the taking of

3 additional evidence that was not submitted to the agency and

4 that purports to establish the existence of a policy of

5 forced sterilization that may apply to the petitioner. This

6 is something of an odd question. As the Supreme Court has

7 observed:

8 “[I]t would be a strange rule . . . which deprived
9 a judge of power to do what was asked when request
10 was made by the person most concerned, and yet
11 allowed him to act without petition,” and such an
12 arrangement “would almost certainly subject trial
13 judges to private appeals or application by
14 counsel or friends of one convicted.”
15
16 Carlisle v. United States, 517 U.S. 416, 422 (1996) (quoting

17 United States v. Smith, 331 U.S. 469, 474, 475 (1947)).

18 Nevertheless, this question is presented by circumstance,

19 and we proceed to answer it.

20

21 V

22 “When Congress established the lower federal courts and

23 vested them with the ‘judicial Power of the United States,’

24 U.S. Const. art. III, § 1, . . . [t]he ‘judicial Power’

25 consisted of all the inherent powers of the courts of

26 justice necessary to their functioning . . . .” Armstrong

15
 1 v. Guccione, 470 F.3d 89, 103 (2d Cir. 2006); see also

2 United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812)

3 (“Certain implied powers must necessarily result to our

4 Courts of justice from the nature of their institution.”).

5 However, “[t]he lower federal courts are creatures of

6 statute.” Armstrong, 470 F.3d at 102. As such, their

7 “jurisdiction is defined by written law, [and] cannot

8 transcend that jurisdiction.” Ex parte Bollman, 8 U.S. (4

9 Cranch) 75, 93 (1807). “[T]he power which congress

10 possess[es] to create Courts of inferior jurisdiction,

11 necessarily implies the power to limit the jurisdiction of

12 those Courts to particular objects . . . .” Hudson, 11 U.S.

13 (7 Cranch) at 33. Accordingly, even where lower federal

14 courts possess inherent power, “the exercise of [that power]

15 can be limited by statute and rule.” Chambers v. Nasco,

16 Inc., 501 U.S. 32, 47 (1991).

17 We will not, however, “‘lightly assume that Congress

18 has intended to depart from established principles,’ such as

19 the scope of a court’s inherent power.” Id. at 47 (quoting

20 Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982)).

21 “For Congress to displace or repudiate the lower federal

22 courts’ inherent powers, the Supreme Court has demanded

16
 1 something akin to a clear indication of legislative intent.”

2 Armstrong, 470 F.3d at 102. It is not enough for Congress

3 to pass a statute that expressly grants power that is

4 coextensive with the courts’ already existing inherent

5 power. Chambers, 501 U.S. at 49 (“[T]he inherent power of a

6 court can be invoked even if procedural rules exist which

7 sanction the same conduct.”). Therefore, “it is possible

8 for statutory and inherent sources of judicial authority to

9 coexist.” Armstrong, 470 F.3d at 102. And the subsequent

10 revocation of a coextensive statutory grant of power does

11 not necessarily act to circumscribe the courts’ inherent

12 power that preexisted the statutory grant. Cf. INS v. St.

13 Cyr, 533 U.S. 289, 310 (2001) (holding that the repeal of a

14 statute “cannot be sufficient to eliminate what it did not

15 originally grant”); Ex parte Yerger, 75 U.S. (8 Wall) 85,

16 104-05 (1868) (interpreting Congress’s repeal of an act to

17 affect only the jurisdiction conferred by that act).

18

19 VI

20 The enactment of IIRIRA altered our power to review

21 orders of removal: we “may not order the taking of

22 additional evidence under section 2347(c) of Title 28.” 8

17
 1 U.S.C. § 1252(a)(1). Neither § 2347(c) nor IIRIRA mentions

2 a court’s inherent power; so if there existed such an

3 inherent power to order the taking of additional evidence,

4 the enactment of § 2347(c) would not operate to displace it,

5 and the subsequent limitation of § 2347(c) would not operate

6 to limit it--though an argument could be made to the

7 contrary.2

8 “[T]he [inherent] power of courts over their own

9 officers, or to protect themselves, and their members, from

10 being disturbed in the exercise of their functions” is long

11 established. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 94

12 (1807). This inherent power generally extends only to a

13 court’s management of its own affairs: to impose decorum,

14 to maintain order, to control admission to the bar, to

15 discipline attorneys, to punish for contempt, and to vacate

16 its own judgments if tainted by fraud. Chambers, 501 U.S.

17 at 43-44; see also Degen v. United States, 517 U.S. 820, 823

18 (1996) (“Courts . . . have certain inherent authority to

2
1 IIRIRA also states: “Judicial review of a final order
2 of removal . . . is governed only by chapter 158 of Title
3 28.” 8 U.S.C. § 1252(a)(1) (emphasis added). The use of
4 the word “only” could be read to evince a congressional
5 intent to strip us of any inherent power in the course of
6 reviewing orders of removal. However, for the reasons
7 explained below, we need not reach that question.
18
 1 protect their proceedings and judgments in the courts of

2 discharging their traditional responsibilities.”).

3 The inherent power posited by the Tian Ming Lin panel

4 has nothing to do with a court’s own affairs; the power

5 supposed is “the inherent equitable power to remand cases to

6 administrative agencies for further proceedings in

7 sufficiently compelling circumstances,” 473 F.3d at 52, “for

8 consideration of new evidence,” id. at 53. A remand to an

9 administrative agency instructing the agency to reopen the

10 record and take additional evidence is not the management of

11 a court’s own affairs, and the Supreme Court has rejected

12 assertions of inherent power that are “remote from what

13 courts require in order to perform their functions.”

14 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 380

15 (1994); cf. Ex parte Bollman, 8 U.S. (4 Cranch) at 94

16 (stating “the power of taking cognizance of any question

17 between individuals, or between the government and

18 individuals” must be “given to this court” by a “statute

19 compatible with the constitution of the United States”). We

20 therefore conclude that, though we have some inherent

21 powers, see, e.g., Chambers, 501 U.S. at 43-44, it is not

22 immediately obvious that we have the inherent power

19
 1 suggested by the Tian Ming Lin panel.

2 In support of its assertion of power, the Tian Ming Lin

3 panel relied exclusively on a passage in Ford Motor Co. v.

4 NLRB, 305 U.S. 364 (1939). See 473 F.3d at 52-53. However,

5 Ford Motor Co. is not as useful an analog as the Tian Ming

6 Lin panel would have it.

7 The procedural posture of Ford Motor Co. is as follows:

8 After the NLRB ordered Ford to “desist from described

9 practices and to offer reinstatement, with back pay, to

10 certain discharged employees,” 305 U.S. at 366, the NLRB

11 moved in the court of appeals “seeking the enforcement of

12 its order,” id., while Ford instituted its own action

13 “asking the court [of appeals] to review and set aside the

14 [NLRB’s] order.” Id. at 367. The Supreme Court considered

15 these parallel proceedings “essentially one” proceeding,

16 because they both hinged on “the legality of the [NLRB]’s

17 order.” Id. at 370; see also id. at 369 (“[T]he

18 jurisdiction of the Circuit Court of Appeals is of the same

19 character and scope in a proceeding for review brought by a

20 person aggrieved by an order of the Board as the

21 jurisdiction which the court has in a proceeding instituted

22 by the Board . . . .”). The NLRB moved to withdraw its

20
 1 enforcement action and “remand th[e] cause to the [NLRB] for

2 the purpose of setting aside its findings and [the initial]

3 order.” Id. at 367. The court of appeals granted the

4 motion, and the Supreme Court held that the court of appeals

5 had jurisdiction to do so.

6 In so holding, the Supreme Court used the following

7 language, upon which the Tian Ming Lin panel relied:

8 It is familiar appellate practice to remand causes
9 for further proceedings without deciding the
10 merits, where justice demands that course in order
11 that some defect in the record may be supplied. .
12 . . The jurisdiction to review the orders of the
13 [NLRB] is vested in a court with equity powers,
14 and while the court must act within the bounds of
15 the statute and without intruding upon the
16 administrative province, it may adjust its relief
17 to the exigencies of the case in accordance with
18 the equitable principles governing judicial
19 action.
20
21 Id. at 373; see also Tian Ming Lin, 473 F.3d at 52-53

22 (quoting the above passage).

23 The Supreme Court reasoned that “[t]he statute with

24 respect to a judicial review of orders of the [NLRB] follows

25 closely” the statute governing judicial review of Federal

26 Trade Commission orders, under which “it [was] well

27 established that the court may remand the cause to the

28 Commission for further proceedings to the end that valid and

21
 1 essential findings may be made.”3 Ford Motor Co., 305 U.S.

2 at 373. Moreover, there was no dispute that, under the

3 governing statute, the court of appeals “could have remanded

4 the cause for further proceedings” if the motion had been

5 made by the petitioner. Id. at 372. Accordingly, the

6 question was: given that the court of appeals had

7 jurisdiction to set aside the NLRB’s findings, did the court

8 of appeals have jurisdiction to permit the NLRB to set aside

9 its own findings on its own motion without confessing error.

10 Id. at 374-75. The Court held that it did. Id. at 375.

11 Ford Motor Co. may not support the proposition that we

12 have inherent power to remand and order the reopening of the

13 record for the taking of additional evidence, in compelling

14 circumstances or otherwise;4 rather, it may suggest that the

3
1 The Court relied on FTC v. Curtis Publishing Co., 260
2 U.S. 568, 580 (1923), in support of this proposition
3 concerning orders of the Federal Trade Commission. See Ford
4 Motor Co., 305 U.S. at 373. Curtis makes clear that the
5 relevant “statute grants jurisdiction to make and enter . .
6 . a decree affirming, modifying or setting aside an order,”
7 260 U.S. at 580. The power inferred by the Curtis Court was
8 the power to “examine the whole record and ascertain for
9 itself the issues presented and whether there are material
10 facts not reported by the commission.” Id. (emphasis
11 added). The Court inferred no inherent power to examine
12 evidence outside the record, or an inherent power to order
13 the Federal Trade Commission to do so.
4
1 The two circuit court opinions cited in Tian Ming Lin
2 also fail to provide any meaningful support. See 473 F.3d
22
 1 scope of our inherent power to remand might depend upon the

2 request of the government.5 Nevertheless, a remand

3 compelling the BIA to reopen the record would be hard to

4 square with the post-IIRIRA statutory framework.

5 On the other hand, we cannot and should not attribute

6 dispositive weight to the government’s stipulation to a

7 remand. Rule 42(b) of the Federal Rules of Civil Procedure

8 provides that “[t]he circuit clerk may dismiss a docketed

9 appeal if the parties file a signed dismissal agreement . .

10 . . [but n]o mandate or other process may issue without a

11 court order.” (emphasis added). Thus, as we explained in

12 Khouzam v. Ashcroft, “[a]lthough the parties are free to

13 agree to a dismissal on their own, Federal Rule of Appellate

1 at 52-53. In a pre-IIRIRA case, the Tenth Circuit stated
2 that Ford Motor Co. established an inherent power to remand,
3 but the statement was dicta and unaccompanied by any
4 discussion. See Becerra-Jimenez v. INS, 829 F.2d 996, 1001-
5 02 (10th Cir. 1987). The District of Columbia Circuit has
6 (in a footnote) read Ford Motor Co. to permit “a remand in
7 the absence of reversal,” but not the exercise of broad
8 inherent powers asserted by the Tian Ming Lin panel. See
9 Greater Boston Television Corp. v. FCC, 463 F.2d 268, 283
10 n.26 (D.C. Cir. 1971).
5
1 While we no longer have the power to “order the
2 taking of additional evidence under” § 2347(c), 8 U.S.C. §
3 1252(a)(1), the Attorney General can withdraw an order of
4 the BIA for further review, thus depriving us of
5 jurisdiction. See 8 C.F.R. § 1003.1(h)(1)(i); Ren v.
6 Gonzales, 440 F.3d 446, 448-49 (7th Cir. 2006).
23
 1 Procedure 42(b) does not mandate that an appellate court

2 issue an order simply because the parties agree to it.” 361

3 F.3d 161, 167 (2d Cir. 2004).6

4 Still, we cannot imagine all possible circumstances

5 that might arise in future cases, and we therefore decline

6 to forswear categorically all inherent power to remand for

7 additional fact-finding in agency cases that present

8 extraordinary and compelling circumstances.7 Rather, we

9 conclude that the exercise of such an inherent power is not

10 warranted if, as here: [i] the basis for the remand is an

6
1 In certain circumstances, the Supreme Court has seen
2 fit to remand cases to state courts for the further
3 development of the record, without mention of the consent of
4 either party. See Villa v. Van Schaick, 299 U.S. 152, 155
5 (1936); Gulf, Colo., & Santa Fe Ry. Co. v. Dennis, 224 U.S.
6 503, 507 (1912).
7
1 For example, a remand for additional fact-finding may
2 be necessary in cases where “a fraud has been perpetrated
3 upon the court,” or “‘to set aside fraudulently begotten
4 judgments.’” Chambers, 501 U.S. at 44 (quoting Hazel-Atlas
5 Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245 (1944)).
6 Such a remand and order would fall within a court’s power to
7 manage its own affairs. Id. at 43. In Massachusetts Bay
8 Telecasters, Inc. v. FCC, 261 F.2d 55 (D.C. Cir. 1958), and
9 WORZ, Inc. v. FCC, 268 F.2d 889 (D.C. Cir. 1959), the Court
10 of Appeals for the District of Columbia took judicial notice
11 of congressional testimony that caused the Court to suspect
12 that the agency determination under review was tainted by
13 “misconduct” and “[i]mproper influence” that went to the
14 “very core” of the FCC’s judicial function. Mass. Bay
15 Telecasters, 261 F.2d at 67. The Court therefore remanded
16 and ordered that the FCC reopen the record and consider
17 evidence of misconduct.
24
 1 instruction to consider documentary evidence that was not in

2 the record before the BIA; and [ii] the agency regulations

3 set forth procedures to reopen a case before the BIA for the

4 taking of additional evidence.

5

6 VII

7 “Because of their very potency, inherent powers must be

8 exercised with restraint and discretion.” Chambers, 501 U.S.

9 at 44. The existence of evidence that was not in the record

10 before the BIA (and therefore was not examined by the BIA)

11 does not present a sufficiently compelling situation to

12 warrant the exercise of inherent power to order the taking

13 of additional evidence. Nor are these circumstances

14 “unusual,” Tian Ming Lin, 473 F.3d at 54; nothing is easier

15 than to submit to an appellate court for the first time

16 documents that, “if authentic,” would “appear to be official

17 statements” of the Chinese government. Id. at 51. If not

18 these documents or those documents, some others would do.

19 The test proposed by the Tian Ming Lin panel is to

20 remand for the taking of additional evidence if there are

21 “sufficiently compelling circumstances.” Id. at 52.

22 Evidence may be “compelling” if it is authentic, but we are

25
 1 in no position to make such a determination. According to

2 the Tian Ming Lin dicta, all that is needed is to “notice

3 only that another panel of our Court remanded a case to the

4 BIA for reconsideration of previously unexamined evidence

5 that, in the opinion of that panel, ‘apparently reflects

6 governmental policy’” regarding forced sterilization. Id.

7 at 52. But a prior panel’s remand based on unexamined but

8 potentially material evidence that was in the record of that

9 case does not establish that the evidence is “compelling,”

10 much less that it is “sufficiently compelling” to warrant

11 remand for consideration of that evidence in other cases; it

12 merely establishes the unremarkable proposition that a

13 remand is appropriate when the BIA fails to consider

14 potentially material evidence that was in the record before

15 it. See Shou Yung Guo, 463 F.3d at 115.

16 More fundamentally, the agency regulations provide an

17 avenue for the reopening of proceedings, and specify

18 conditions and parameters that amount to a set of standards

19 for what is compelling and what is not. Thus, a person in

20 Ni’s position is afforded an opportunity to move to reopen

21 proceedings before the BIA. The motion may be granted if

22 [i] the petitioner presents new evidence that “is material

26
 1 and was not available and could not have been discovered or

2 presented at the former hearing,” 8 C.F.R. § 1003.2(c)(1);

3 [ii] the motion is filed within ninety days of the final

4 administrative decision, id. § 1003.2(c)(2); and [iii] the

5 petitioner has not already filed a motion to reopen, id.

6 These “time and numerical limitations” do not bar a motion

7 to reopen if it is “based on changed circumstances arising

8 in the country of nationality or in the country to which

9 deportation has been ordered.” Id. § 1003.2(c)(3). In

10 deciding the motion to reopen, the BIA can evaluate the

11 petitioner’s new evidence, and determine its import in the

12 first instance. If the motion is denied under such

13 circumstances that the BIA was compelled to grant it, a

14 petition may be taken to this Court, and this Court can

15 grant relief--without calling upon extraordinary inherent

16 powers. See, e.g., Hasirah v. Dep’t of Homeland Security,

17 478 F.3d 474, 476-77 (2d Cir. 2007) (per curiam) (“We review

18 the denial of a motion to reopen a removal proceeding for

19 abuse of discretion.”).

20 “Principles of deference counsel restraint in resorting

21 to inherent power, and require its use to be a reasonable

22 response to the problems and needs that provoke it.” Degen,

27
 1 517 U.S. at 823-24 (internal citations omitted). “A court’s

2 inherent power is limited by the necessity giving rise to

3 its exercise.” Id. at 829. Where, as here, existing

4 statutes and regulations provide an “alternative means of

5 protecting the [petitioner’s] interests,” and say when and

6 how the record may (and may not) be reopened, there is “a

7 lack of necessity,” id. at 827, for the resort to inherent

8 powers.8

9 The ability of a particular petitioner to successfully

10 reopen proceedings in the agency does not bear on the

11 question. It therefore does not matter whether the BIA

12 would grant a hypothetical motion to reopen filed by Ni at

13 some future time. The question is whether we should

14 exercise some inherent power to remand to the BIA and order

15 the taking of additional evidence when the BIA itself has

16 not had the opportunity to consider the evidence in the

8
1 One of our colleagues has argued that even where
2 inherent power is unquestionably available (e.g., our
3 contempt power), provisions that regulate the exercise of
4 overlapping statutory power “should be a presumptive
5 benchmark” for the exercise of the inherent power.
6 Armstrong, 470 F.3d at 113 (Sotomayor, J., concurring). It
7 would then follow that if inherent power existed to remand
8 for a reopening of the record in the BIA, the regulations
9 governing motions to reopen would be a presumptive benchmark
10 for deciding whether the circumstances presented were
11 sufficiently compelling to justify use of inherent powers to
12 do approximately the same thing.
28
 1 context of the petitioner’s case. The mere opportunity to

2 file a motion to reopen means that regardless of the

3 disposition in this Court, a petitioner has the ability to

4 put additional evidence before the agency, and the agency

5 will consider whether to reopen proceedings in light of that

6 evidence. If the agency grants the motion, then the need

7 for this Court to review its decision is eliminated. If the

8 agency denies the motion based on a determination that the

9 evidence is either immaterial or fraudulent, then we can

10 review that decision on a full record, which would include

11 the relevant evidence. If the agency denies the motion

12 based on a determination that the motion is untimely or

13 otherwise procedurally barred, see 8 C.F.R. § 1003.2(c),

14 then we can review that decision as well. But our power

15 (inherent or otherwise) to review that decision is unrelated

16 to any inherent power to remand and order the taking of

17 additional evidence, which would be unnecessary in such a

18 case, because the relevant evidence would have been in the

19 record before the BIA on the motion to reopen proceedings.9

9
1 The concurrence suggests that two observations are
2 “all that is needed to decide the case,” concurring op. at
3 4: that [i] Ni “may very well” be able to reopen the
4 proceedings in the agency, id. at 2-3, and [ii] it is “more
5 than plausible” that Ni will be able to file another asylum
6 application, id. at 3-4. But that is sheer speculation. We
29
 1 VIII

2 Neither Hoxhallari v. Gonzales, 468 F.3d 179 (2d Cir.

3 2006), nor Latifi v. Gonzales, 430 F.3d 103 (2d Cir. 2005),

4 (both cited in Tian Ming Lin, 473 F.3d at 51) are to the

5 contrary. In Latifi, we remanded due to numerous errors in

6 the IJ’s adverse credibility finding as to the Albanian

7 petitioner. 430 F.3d at 105-06. In a closing footnote, we

8 recognized that “the Democratic Party returned to power in

9 Albania.” Id. at 106 n.1. But this observation was not the

10 basis for our remand; we did no more that suggest that the

11 BIA “may wish to consider this event,” and that the

12 government had “the burden of showing the significance, if

13 any, of the change in power.” Id.

14 In Hoxhallari, we upheld an IJ’s conclusion that

15 changed country conditions in Albania defeated the

16 petitioner’s presumption of future persecution. 468 F.3d at

1 hold that the exercise of inherent power does not depend on
2 the prevailing odds of success for hypothetical motions that
3 may or may not ever be filed with the agency. The
4 concurrence concedes that inherent powers should not be
5 exercised unless “there is no other way to correct manifest
6 injustice.” Id. at 1. But even if “manifest injustice”
7 triggered an inherent power, we cannot know whether our
8 failure to exercise such power would lead to any particular
9 outcome (just, unjust, or manifestly unjust) unless and
10 until the BIA has had an opportunity to review a specific
11 request for relief.
30
 1 184-87. While the IJ’s discussion of the changed conditions

2 was “perfunctory,” the IJ “recognized th[e] political

3 transformation” occurring in Albania. See id. at 183, 185.

4 We concluded that this recognition was sufficient, and did

5 not require a “detailed [and] specific” recitation of

6 country conditions, id. at 187, because we assumed that the

7 IJ was aware of “the salient historical events and

8 conditions of countries that are the subject of an

9 appreciable proportion of asylum claims,” id. at 186.

10 Thus, these cases stand for the uncontroversial

11 propositions that [i] this Court is not ignorant of

12 indisputable historical events (such as the partition of

13 India, the break-up of the Ottoman Empire, or the fall of

14 Communist regimes in the Balkans), and [ii] we will not

15 assume that the agency suffers from such ignorance. Neither

16 proposition has any import here.

17

18 * * * * *

19 For the reasons set forth above, the petition is hereby

20 denied.

21

22

31
 1 CALABRESI, Circuit Judge, concurring:

2 I concur in the result. There is much in the majority

3 opinion with which I agree, as to matters both central and

4 peripheral to its decision. In the latter category, I find

5 very helpful, for instance, the majority’s treatment of

6 Latifi and Hoxhallari. Latifi v. Gonzales, 430 F.3d 103 (2d

7 Cir. 2005) (per curiam); Hoxhallari v. Gonzales, 468 F.3d

8 179 (2d Cir. 2006) (per curiam); see maj. op. at 30-31.

9 More centrally, like the majority, I believe that the

10 question of whether we have inherent equitable power to

11 remand for additional fact-finding, given the removal of our

12 statutory authority to do so, is not yet fully resolved. 8

13 U.S.C. § 1252(a)(1). There are clearly strong feelings on

14 that question. See Tian Ming Lin v. U.S. Dep’t of Justice,

15 473 F.3d 48 (2d Cir. 2007) (per curiam); maj. op. at 15-25.

16 And, as the majority opinion says, one should be hesitant to

17 assume the nonexistence or the casual statutory abrogation

18 of any such inherent equitable powers. Maj. op. at 16-17. I

19 fully concur with the majority, however, that such inherent

20 equitable powers, if they exist, should be exercised only

21 very sparingly, for example, where there is no other way to

22 correct manifest injustice. Moreover, in the case before us,

32
 1 I think it obvious that, at least at this time, no manifest

2 injustice will result from our decision not to remand to the

3 BIA.

4 Broadly speaking, the petitioner may have two

5 alternative avenues for relief.

6 First, she has the option of asking the BIA to reopen

7 the original proceedings. 8 C.F.R. § 1003.2. Normally, a

8 motion to reopen must be filed within ninety days of the

9 Board’s decision, 8 C.F.R. § 1003.2(c)(2), but this time

10 limit does not apply to petitioners relying on new evidence

11 of changed country conditions, where that evidence could not

12 have been discovered or presented at the original hearing. 8

13 C.F.R. § 1003.2(c)(3)(iii). 1 The documents proffered by the

14 petitioner in Chen – if valid – may very well establish

15 changed country conditions. Jin Xiu Chen v. U.S. Dep’t of

16 Justice, 468 F.3d 109 (2d Cir. 2006) (per curiam). And even

17 if the Chen documents themselves describe conditions which

18 predate Ni’s petition, they may represent the “equivalent of

19 changed country conditions notwithstanding the date of their

20 issuance[] . . . because they might vary the perception of
1
1 While the decision to grant or deny a motion to reopen
2 remains within the BIA’s discretion, 8 C.F.R. 1003.2(a), as
3 the majority points out, this court can review that decision
4 for abuse of discretion. See maj. op. at 27; Ke Zhen Zhao v.
5 U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d. Cir 2001).

33
 1 the State Department, upon which the immigration courts

2 rely, which would warrant reopening under 8 C.F.R. §

3 1003.2(c).” Fong Chen v. Gonzales, No. 06-1010, 2007 U.S.

4 App. LEXIS 13897, at *10 (2d Cir. June 14, 2007).

5 Second, the regulations seem to permit the petitioner

6 to make a new request for asylum. The statute allows a

7 repeat application based on changes that have occurred since

8 the original application was denied, if these changed

9 circumstances “materially affect [her] eligibility for

10 asylum.” 8 U.S.C. § 1158(a)(2)(D). This provision apparently

11 includes changed personal conditions as well as changed

12 country conditions. See 8 C.F.R. § 208.4(a)(4)(i); Jian Huan

13 Guan v. BIA, 345 F.3d 47, 49 (2d Cir. 2003) (per curiam); Ai

14 Ming Dong v. U.S. Dep’t of Justice, No. 05-5994, 2007 U.S.

15 App. LEXIS 4693, at *3-4 (2d Cir. Feb. 26, 2007). The

16 subsequent discovery of the Chen documents may well

17 constitute such changed circumstances.

18 A petitioner, like Ni, must file her new request within

19 a “reasonable period,” but in deciding whether she has done

20 so, the authorities are obliged to consider the fact that

21 the changed circumstances were only discovered long after

22 her original request was denied. 8 C.F.R. § 208.4(a)(4)(ii).

34
 1 It seems more than plausible, then, that Ni, even if she

2 could not reopen before the BIA, could present a new asylum

3 petition. Her claim of persecution would, as a result, be

4 heard on its merits.

5 Given these possibilities, it seems to me quite clear

6 that – in this case, at this time – no exercise of inherent

7 equitable powers is called for to prevent manifest

8 injustice. Since that is all that is needed to decide the

9 case, I fully agree that the petition must be denied without

10 determining whether or not we have such inherent equitable

11 powers to remand.

12 As to most of the interesting, learned and often useful

13 dicta in the majority opinion, I express no ultimate view.

14 There is, however, one implication in the opinion which is

15 dicta and with which I expressly disagree. The opinion

16 states that “[w]here . . . existing statutes and regulations

17 provide an ‘alternative means of protecting the

18 [petitioner’s] interests,’ . . . there is ‘a lack of

19 necessity’ for the resort to inherent powers.” Maj. op. at

20 28 (second alteration in original) (citation omitted). The

21 opinion then adds that “[t]he ability of a particular

22 petitioner to successfully reopen proceedings does not bear

35
 1 on the question.” Id. This language could be taken to mean

2 that the mere existence of a procedure which permits some

3 petitioners to have their cases heard by the BIA, but

4 excludes others, would be sufficient to bar the exercise of

5 any inherent equitable powers we have, even when the

6 excluded applicants would suffer manifest injustice.

7 If that is what the majority means to say, 2 this dictum

8 strikes me as wrong and, indeed, self-contradictory. If the

9 reason we have inherent equitable powers at all is that

10 courts are not readily deprived of the power to remand to

11 correct manifest injustice, then those powers must be

1 2
I am not sure that the majority intends to go this
2 far. There is language in the opinion that suggests no more
3 than that inherent equitable powers ought not to be used
4 when an alternative procedure is seemingly available, until
5 it turns out that the procedure was not in fact available to
6 the particular petitioner. I read footnote 9 of the majority
7 opinion to suggest that an exercise of inherent powers – if
8 we have them – might be justified when and if the agency has
9 closed all other doors to hearing a potentially meritorious
10 claim. But there is other language that could be read as
11 more absolute.
12 In any event, while the majority is correct in footnote
13 9 when it says that whether various doors that are plausibly
14 open to petitioner are in fact open can only be
15 “speculation,” that does not end the matter. The presence of
16 those possibilities is enough to justify us in not
17 exercising inherent powers at this time. At this moment, no
18 manifest injustice would result from our abstention. It is
19 only if alternative routes turn out in fact not to be
20 available that the issue of exercise of inherent powers
21 would become ripe for decision.
22

36
 1 available, whether the injustice is due to the total absence

2 of procedures, or instead results from the presence of

3 procedures so circumscribed that they would lead to manifest

4 injustice to a particular petitioner who comes to our court.

5 In any event, since adequate procedures do seem to be

6 available to Ni, none of this is determinative of the case

7 before us.

8 * * * * *

9 Because I agree that if we have inherent powers, they

10 must be used very sparingly, essentially only in cases of

11 manifest injustice; and because in the instant case

12 procedures are seemingly available to avoid any such

13 injustice at this time, I agree with the majority that we

14 should not remand, and I concur in the result.

15

37